Creator Content shall comply with and is subject to (i) Pinterest’s Terms of Service, (ii) Pinterest’s Creator Code, and (iii) Pinterest’s Community Guidelines which, along with any other terms governing the Pinterest service (collectively, “Policies”), are incorporated by reference into these Terms and Conditions. In the event of a conflict, the terms of your Agreement with Pinterest shall take precedence, followed by these Terms and Conditions, and then the Policies. Without limiting the scope or applicability of the foregoing, Creator must have all rights necessary to upload the Creator Content to Pinterest, and to grant to Pinterest the rights described herein. For information about how Pinterest collects, uses, and shares personal information about you, please see Pinterest’s Creator Program Content Privacy Notice.
During the Term of this Agreement, if Creator is a member of SAG-AFTRA and the content produced hereunder is covered by the 2021 SAG-AFTRA Influencer-Produced Sponsored Content Agreement (the “CBA”) Lender shall, on behalf of Creator, become a signatory to the CBA and make the appropriate pension and health (“P&H”) contributions to the SAG-AFTRA Health Plan and SAG-Producers Pension Plan (collectively, the “Plans”). For purposes of calculating the required P&H contributions, the Fee paid to Lender for Creator’s Services shall be allocated at twenty percent (20%) to services covered by the CBA and eighty percent (80%) for all other non-covered services and rights granted herein.
If Creator is employed through a loan out corporation (“Lender”), all references herein to Creator shall be deemed to include Lender, all payments and other consideration hereunder shall be paid solely to Lender, and Lender and Creator hereby represent and warrant, in addition to those representations and warranties set forth herein, as follows: (i) Lender has a valid subsisting exclusive agreement with Creator under which Creator is obligated to render Creator’s Services for Lender for at least the full Term of the Program Agreement; (ii) each has the right to enter into the Program Agreement with Pinterest to furnish the Services and to grant all of the rights as herein set forth; (iii) Lender is a corporation duly organized and existing under the laws of Lender’s state or country of incorporation; (iv) Lender is a bona fide corporate business entity established for a valid business purpose within the meaning of the tax laws of the United States; (v) Lender shall fulfill all of the responsibilities of the employer of Creator and shall fully discharge all of such obligations as required by any and all laws, regulations, and orders now or hereafter enforced; and (vi) during the Term of the Agreement, Lender will not alter or amend its agreement with Creator in any way which would or could have a detrimental effect on any rights of Pinterest hereunder.
All rights granted by Creator as set forth in the Program Agreement shall be deemed granted by Lender as well, and all warranties, agreements, duties, liabilities, obligations and indemnifications given, made and/or assumed by Creator shall be deemed given, made and/or assumed by Lender as well. Lender’s and Creator’s liability for breach of the Program Agreement shall be joint and several. Any breach of the Program Agreement by Creator shall be deemed to be a breach of the Program Agreement by Lender, and vice versa and all of Pinterest’s obligations to Creator and Lender shall be conditioned upon neither Lender nor Creator being in breach or default of this Agreement. In addition, Pinterest’s obligations to Creator pursuant to the Agreement shall be deemed to be Pinterest’s sole obligations to Lender. Lender agrees to indemnify, defend, and hold harmless Pinterest and Pinterest’s parents, subsidiaries, officers, directors, employees, successors and assigns with respect to all claims, costs, judgments, penalties, fines, interest, damages, and expenses, including reasonable attorneys’ fees, arising from (i) any claim for compensation by Creator; (ii) any breach by Lender of any representation, warranty, or agreement made by Lender hereunder; and (iii) Creator’s injury, illness, disability or death. The foregoing warranties and indemnities are in addition to and not in limitation of those contained in the Agreement.
If Creator is not employed through a Lender, Creator hereby acknowledges and agrees that (i) Pinterest will issue to Creator a FORM 1099-MISC, and (ii) solely Creator is hereby responsible for Creator’s own tax obligations hereunder, including calculating, filing, and remitting any and all tax documentation, taxes, and similar withholdings (e.g., social security) that may be due in connection with Creator’s Services hereunder.
Pinterest ads credits are non-transferable, cannot be exchanged for cash, refunds, or payment adjustments, and can only be spent in the Pinterest auction on non-premium ad products (i.e., excluding max-width video format), and within the period in which they are valid.
Solely in connection with the Program Usage identified in the Program Agreement, Creator hereby grants to Pinterest a non-revocable, royalty-free, perpetual right and license throughout the universe, to use, reuse, reproduce, publish, display, modify, edit, and create an unlimited number of materials that include or otherwise use and to make derivative works thereof (i) the Creator Content, as well as (ii) Creator’s image, name, voice, likeness, performance, biographical materials, statements, testimonials, and social media handles), including as recordings (i.e., video, voice, and still images), from any Event, in whole or in part, for any purpose, including to commercialize or monetize such properties, and for advertising, press, or promotional uses, and to distribute same through any media whatsoever (whether now existing or hereinafter created), including digital media, email, print, broadcast, out-of-home, print, broadcast, out-of-home, Pinterest surfaces, social media, press releases, press pitches, blog posts, and other ways and, for avoidance of doubt, without any restriction or limitation, including as to time, territory, purpose, or medium or as otherwise limited as set forth herein and as necessary to effectuate the purpose and intent of the Program Agreement (collectively, “Usage Rights”). Wherever reasonably possible, Pinterest will credit Creator for the Creator Content. Notwithstanding the foregoing, Creator acknowledges and agrees that Pinterest is under no obligation to use the Creator Content for any purpose. Creator waives all claims or demands (including but not limited to invasion of privacy, right of publicity, defamation, droit moral or similar rights which Creator may have) against Pinterest, its employees, or its agents.
Creator represents and warrants that (i) Creator has all necessary rights to enter into this Agreement (including rights of publicity and privacy and any other rights with respect to the appearance of any individual in the Creator Content) without violating the rights of any third party; (ii) that neither the Creator Content, Creator’s Posts, Creator’s presentations at Events, nor any portion thereof infringes the rights of any third parties; (iii) Creator shall not make any false, misleading, or disparaging remarks about Pinterest or the applicable Program; (iv) that Creator will comply with all applicable laws, rules, regulations, administrative guidelines, orders, and ordinances, including the FTC Endorsement and Testimonials Guidelines and similar guidance, as well as any instruction provided by Pinterest; (v) Creator’s services and any materials supplied by Creator will be original, have not been previously published or otherwise distributed (in whole or in part), and shall not violate or otherwise infringe the rights of any third parties; (vi) Creator will at all times related to the Program, act in a professional manner in accordance with the highest skill and ethical standards in the industry for services similar to Creator’s obligations in connection with the Program, not be under the influence of drugs or alcohol, and shall not act or engage in any practice or conduct that is or shall be an offense involving moral turpitude under federal, state or local laws, or brings Pinterest into public disrepute, contempt, scandal, or ridicule, or that insults or offends the community or any substantial organized group thereof. Pinterest’s decisions on all matters arising under the foregoing shall be based on Pinterest’s reasonable judgment. In no event will Pinterest’s approval of any Creator Content relieve Creator of Creator’s responsibilities herein. Creator shall perform its obligations under this Agreement to the highest ethical standards.
Creator agrees to indemnify, defend, and hold harmless Pinterest and its officers, directors, employees and agents, (collectively, “Indemnified Parties”), from and against any and all claims, demands, suits, actions, losses, damages, costs, judgments, penalties and expenses of any kind (including reasonable legal fees and disbursements) which may be obtained against, imposed upon or suffered by an Indemnified Party as a result of (i) the material breach by Creator of this Agreement or any of the warranties and representations made herein; (ii) Pinterest’s exercise of any of the rights provided for herein; (iii) any content, statements, information or material supplied by Creator to Pinterest in connection with the Program (including, without limitation, any claim that any statements or published content Creator makes about Pinterest, or any information, work product, or material supplied by Creator to Pinterest, defames any third party or violates any federal, state or local laws or any intellectual property, trade secret, privacy or publicity rights of any third party); or (iv) Creator’s intentional misconduct or negligent acts or omissions. Pinterest may, at its election, assume the defense, settlement, or other resolution of such claim with counsel of its own choosing. This paragraph shall survive the termination or expiration of the Program Agreement. Pinterest shall not be liable to Creator for any consequential or incidental damages or lost profits, even if either party has been advised of the possibility of such losses.
SUBJECT TO THE LAST SENTENCE OF THIS SECTION, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. SUBJECT TO THE LAST SENTENCE OF THIS SECTION, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT WILL EXCEED THREE TIMES THE CASH AMOUNT ACTUALLY PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION (OR IN THE CASE OF MULTIPLE CLAIMS, THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST CAUSE OF ACTION). THESE LIMITATIONS OF LIABILITY WILL NOT APPLY TO: (a) INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS; (b) BREACHES OF CONFIDENTIALITY); (c) WARRANTY; OR (d) INDEMNIFICATION OBLIGATIONS.
Any expenses incurred as a result of the performance of this Agreement are borne by each party for its respective obligations, including those relating to travel, materials, and otherwise (collectively, “Expenses”). Pinterest shall not reimburse Creator for any Expenses incurred hereunder.
The parties intend that the relationship between them is solely an independent contractor relationship, and not an employee-employer relationship. Creator acknowledges and agrees that it will not be entitled to any of the benefits which Pinterest may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits, and Creator is not authorized to make any representation, contract, or commitment on behalf of Pinterest. Creator represents, warrants and agrees that Creator is customarily engaged in a separate and independent business, which qualifies as an independently established trade, occupation or business, and which is of the same nature as the work and Creator Content or services to be performed under this Agreement. Creator further agrees that after reviewing information regarding Pinterest’s services, that Creator represents, warrants and agrees that the Creator Content and services set forth in this Agreement are outside the usual course of Pinterest’s business and are separate and distinct from the type of services performed by Pinterest’s employees. Creator further confirms that Creator is free from the control and direction of Pinterest both under the terms of this Agreement and in fact.
Creator will not disclose any trade secrets or confidential information of Pinterest to any third parties, including, but not limited, to any content of any advertising that Pinterest has not yet released, your relationship with Pinterest (until publicly disclosed by Pinterest), and any of the terms of this Agreement other than to Creator’s personal representatives and/or as required by law or court order or to enforce this Agreement. Except for the rights granted to Pinterest herein, neither party may make any public statement about the relationship contemplated in, or terms of this Agreement without the other party’s prior written consent. This paragraph shall survive the termination or expiration of this Agreement.
Neither party may assign this Agreement without the other party’s prior written consent, except upon written notice by Pinterest of a change of control. Any other attempts to assign or transfer this Agreement are hereby deemed void.
This Agreement may be amended only with the mutual written consent of the parties.
This Agreement is governed by the laws of the State of California, without respect to its conflict of laws principles. THE EXCLUSIVE VENUE FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS SAN FRANCISCO AND THE PARTIES CONSENT TO THE PERSONAL JURISDICTION IN THOSE COURTS.
Failure to enforce any provision of this Agreement will not constitute a waiver thereof. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect. This Agreement, including all Exhibits and Policies, is the entire agreement on this topic and supersedes all prior agreements, communications, and understandings on this topic. No one other than a party to this agreement shall have any right to enforce any of its terms. The titles of the paragraphs of this Agreement are for convenience only and will not in any way affect the interpretation of any paragraphs of this Agreement or of the Agreement itself. Neither the expiration nor termination of this Agreement, or of Creator’s services hereunder, shall diminish, impair, modify or otherwise affect any of the provisions hereof capable of surviving and intended to survive such expiration or termination. All notices which Pinterest is required or may desire to serve upon Creator hereunder may be served by delivering the same to Creator personally in writing or orally, unless otherwise specified herein, or by addressing the same to Creator at the address designated in the Program Agreement and depositing the same so addressed, postage prepaid, in the United States mail or by sending the same addressed by telecopy. Creator will keep Pinterest notified and advised as to where Creator may be reached by telephone without unreasonable delay. Service of all notices that Creator is required or may desire to serve upon Pinterest in connection with this Agreement will be sufficient only if given personally in writing or mailed, postage prepaid, and addressed to: Pinterest, Inc. c/o Legal Department, 505 Brannan Street, San Francisco, California 94107. Any mailed notice will be deemed to have been served on the date of the mailing thereof.